The beauty of Tootsie

Tonight was a very special night for me. I went to the launch of the Kennedy Award, an exhibition of paintings, finalists in a competition with the theme of beauty. The idea was to take the theme beyond the superficial.

It was special night for me, because I was in the exhibition, the subject of a painting over a meter tall painted by the wonderful Marieka Hambledon. Being painted by her was a wonderful experience. I would have loved for us to win. But we didn’t and both of us were overjoyed. We were overjoyed because the painting that won is incredible. It was called ‘Tootsie, just an Old Drag Queen’.

Today was also wear it purple day, an annual awareness day for LGBTQI people. In Australia, young LGBTQI people are five times more likely to attempt suicide and twice as likely to engage I self-harm compared to the general population.

Tootsie, the subject of the winning painting, was 20 years old when he was imprisoned just for being gay. When the judges announced the award, they said you could almost smell the subject. It’s true. Though Tootsie is smoking one cigarette, the artist tells us he was in fact a chain smoker and the haze almost sits in the room with him, with his lipstick smeared coffee cup.

But why we were so happy this painting won over ours is because there is an incredible beauty in Tootsie and his story, so vivid on the canvas, eyeshadow still on his frail skin. There is beauty in this tale that is so different than those on magazine covers or billboards. That beauty is well worth the prestigious Kennedy Award of $25,000. And may that beauty be a lesson to us all.

UN readies for another resolution while Australia stands in the way of ending impunity for wartime rape

The UN Security Council is in the process of developing a new resolution on Women, Peace and Security. The resolution has been anticipated for several months and is due to be passed as part of the Council’s annual open debate on conflict related sexual violence which is due to be held in New York on Tuesday. An Arria formula meeting was held earlier in the year to prepare council members for the debate, with a particular focus on ending impunity for conflict related sexual violence. Conflict related sexual violence is the focus of four of the existing eight resolutions on women, peace and security. But even the Council has bemoaned the lack of prosecutions for these crimes.

Nobel Laureate Nadia Murad will address the Council during the Open Debate. She has spoken out time and again for justice for survivors from her community who experienced sexual violence as war crimes, crimes against humanity and genocide at the hands of Da’esh in Syria and Iraq. For all the times the international community has shone a spotlight on her tears, we have still failed to do what she asks.

Germany, the current President of the Security Council and chair of this week’s debate is the only country to put a member of Da’esh on trial for any of these gendered crimes. But tens of thousands of foreign fighters travelled from countries around the world and committed these crimes. Many of those foreign fighters come from countries that are States Parties to the Rome Statute of the International Criminal Court and are therefore obliged to investigate and prosecute these crimes in their own court systems.

Both houses of Australia’s Federal Parliament passed multi-party motions calling for the investigation and prosecution of Australians who may have perpetrated sexual violence as war crimes, crimes against humanity and genocide. Several federal ministers have reinforced this obligation. These ministers have included Julie Bishop as Foreign Minister, Peter Dutton as Minister for Home Affairs and Linda Reynolds as Assistant Minister for Home Affairs.

Despite this, the government has failed to implement the strategies required to make such investigations and prosecutions are reality and they have invested energy into policies and legislation which prevent such action. Chapter eight of the Commonwealth Criminal Code clearly articulates the crimes that are laid out in the Rome Statute and ensures that Australian authorities have jurisdiction over such offences even when they are perpetrated overseas, against victims from another country. But this legislation has never been tested in court. The Australian Federal Police require the funding and other resources to stand up unit dedicated to such investigations. No such funding was made available in the latest federal budget.

In order for these prosecutions to occur, the perpetrator must be in federal custody. But the government has pursued a range of legislative and policy processes removing this probability. Given the parliament passed legislation allowing the government to revoke the citizenship of anyone who travelled to Iraq or Syria to join Da’esh, the government was obliged to include an administrative step determining if such individuals perpetrated war crimes, crimes against humanity or genocide before making a determination about citizenship revocation. The citizenship review board that advices the Minister for Home Affairs on such matters has apparently continued to fail to account for such obligations. Now, over a dozen individuals, some of whom are known to have perpetrated heinous crimes against women have had their citizenship revoked, further reducing the likelihood that their victims will see the justice they so rightly deserve.

There is a group of Yazidi women who are fighting for access to support services under Australia’s victims of human trafficking schemes. These women were purchased by an Australian man, for the purpose of sexual slavery, and repeatedly sexually and violently abused. Under Australia’s own criminal laws, those women count as victims of human trafficking, modern slavery, war crimes, crimes against humanity and genocide. But rather than allow them justice, the government revoked the citizenship of their abuser. If they so choose, they could bring a case against the Commonwealth for failure to uphold their obligations under the Rome Statute. Their country of residence, or any other country of interest could take Australia to the International Court of Justice for failing to fulfil our obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

Early in the new year, the government tried to go even further, seeking legislative changes that would allow them to revoke the citizenship of even more people, and enforcing Temporary Exclusion Orders to delay Australians of counter-terrorism interest from re-entering Australia. This is yet another policy that would prevent the arrest or detention of individuals responsible for conflict related sexual violence.

At the Arria formula meeting earlier in the year, civil society presenter Akila Radhakrishnan from the Global Justice Centre said achieving accountability for conflict related sexual violence “requires more than just eloquent rhetoric; it will require Council members to take concrete action and display considerable political will. Sexual and gender-based violence is, at its core, an expression of discrimination, patriarchy and inequality.” Countries like Australia must stop getting in the way of justice and follow up the global rhetoric with the actual action required to end impunity for conflict related sexual violence. We must investigate and prosecute these crimes now!

Nadia Murad: small town girl, reluctant hero, Nobel Laureate

Over the years, the Nobel Peace Prize has chosen some doozy candidates, but it remains one of the world’s most preeminent honours. Last weekend, the Norwegian Nobel Committee announced this year’s award would be shared by Nadia Murad and Dr Denis Mukwege. Both these people have fought for years to end sexual violence in armed conflict.

Nadia Murad grew up in a small town in northern Iraq. She dreamed of becoming a teacher or a beautician. But in 2014, her life was torn apart when ISIS forces swept through her village in an effort to kill the men in her community, enslave the women and girls, and convert the boys. Nadia is a member of a small religious and ethnic community. Although they believe in one heavenly God, ISIS believe they are devil worshippers. That day, Nadia was kidnapped, trafficked to Mosul and sold into sexual slavery. She was beaten and brutally gang raped for a month before finally escaping.

As in so many communities, Nadia and women like her who were so brutally assaulted feared the shame of their community. But she bravely stood up and told her story. What happened to Nadia was not her fault. The only person to blame for rape is the rapist. But what Nadia experienced was not just rape, it was part of a campaign to eradicate her community. It was genocide.

As difficult as it can be for survivors to tell their stories, Nadia sat before the United Nations Security Council and told the world what had happened to her. She told them of the pain and suffering she experienced at the hands of ISIS. She told them what they’d done to her whole community.

Since then, she has continued to campaign for justice. She feels her survival obliged her to fight for the rights of persecuted minorities and victims of sexual violence. In a statement after the Nobel announcement, she reiterated that she wanted to see perpetrators of sexual violence in a courtroom, not executed.

But in many ways, she is still beholden to the experience forced upon her. She is still a relatively ordinary young women, wanting to train to be a beautician; but is thrust into the spotlight because of her bravery, and the heinous acts of men from around the world.

After the announcement was made, in a nod to the #metoo movement and the topical Kavanaugh hearings, Nadia said “my hope is that all women who speak about their experience of sexual violence are heard and accepted.”

Nadia Murad at the National Press Club in Washington DC

Nadia is currently working to help rebuild villages that were destroyed in the battle with ISIS. Villages were burned to the ground, there is no medicine or food, and no crops in fields. While the Nobel Prize money, her share will be about half a million US dollars, will be very much appreciated, it won’t go far in the face of such great need. She explained that it costs about $US 20-30,000 to buy back a Yazidi sex slave and estimated there are about 3000 women and girls still held in captivity.

She has now called “on governments to join me in fighting genocide and sexual violence.” The Australian parliament has committed to investigate and prosecute these crimes, but so far has not acted to do so. To do so, they would need to establish and fund a dedicated team to investigate and prosecute our nationals who perpetrated these crimes as well as gather testimony from Yazidis who now call Australia home.

“A single prize and a single person cannot accomplish these goals. We need an international effort.” If all governments undertook such efforts, then, perhaps Nadia will have the prize she truly seeks, justice for her and her community, and a serious step toward ending impunity for conflict related sexual violence.

 

If you’d like to help Nadia’s cause, you can donate to Nadia’s Initiative via squarespace at https://nadiasinitiative.org/donate/

Ford v Kavanaugh

The following is a guest blog post from my friend and human rights campaigner, Daniel Yeow

Yesterday’s hearings have never been a clearer message that women’s opinions are worth less than men’s. Ford’s memory was continually questioned, while Kavanaugh’s was not. His belligerence was never called out. Her character was constantly attacked.

A thorough FBI investigation would have, while time-consuming, resolved this in a manner respectful of the truth. The choice by the GOP to turn this into political theatre has turned it into an extremely undignified race to the bottom. What little chance remained that Kavanaugh could credibly claim to be an appropriate candidate for the supreme court has now vanished.

They accuse her of politically motivated false accusations, when statistically it is more likely for a man to be sexually assaulted than to be falsely accused of it. Rushing the confirmation of the candidate, after yesterday’s farce, proves that it is in fact the republicans who are acting out of political motivation – putting party and ideology ahead of country and due process.

Pragmatically, the judiciary committee is pushing to vote to recommend the candidate, which will probably happen. Then the senate has to confirm.

What the GOP needs to realise is that, even though they can ‘win’ with their 51-49 majority, yesterday’s political theatre, paired with Trump’s low approval ratings mean that putting Kavanaugh on the supreme court could spell long-term electoral disaster (and in the short-term, even the possibility for a filibuster-proof 2/3 majority for democrats). Confirming the candidate would be the end of the political careers of many GOP senators. On the other hand, crossing the aisle and voting against the party will, in this insane-mobster political environment, result in similar career-ending repercussions.

So for a decent number of senate republicans, they have to make a decision on what will likely be the last thing they do in their political careers. I can’t predict what they will do, but I hope they at least have a conscience which includes women as equals, despite the strong messaging from others in their party.

P.S. I should probably also add that I believe her and not him. Not that that matters. What people are forgetting is that this isn’t a criminal case. This is essentially a job interview. The question isn’t “did Kav try to rape?”, it is “is this guy appropriate material for the supreme court”, and he clearly isn’t.

Feminist analysis of Australia’s emerging security architecture

This post was originally published on 23 August, on the blog of BroadAgenda 50/50

Despite an emerging international movement for feminist foreign policies, it’s not often we publicly discuss feminist views of national security. Over the past five years, the Australian Government has been grappling with the implementation of a whole-of-government policy on Women, Peace and Security (WPS). That policy, the National Action Plan on WPS, is currently due for renewal. But last week, the Australian government announced a major change to Australia’s national security architecture which aligns a range of problematic policy and practice decisions that ignore the views and experiences of women nationally, in the region, and internationally.

Now is the time for a feminist analysis of Australia’s emerging security architecture including a gendered approach to counter terrorism, dealing with foreign fighters and the new home affairs arrangements including women in immigration detention and gendered police support programs in the Pacific.

Australia’s National Action Plan on WPS was developed to integrate Australia’s obligations under a suite of Security Council resolutions on the topic of WPS. The WPS resolutions recognise that men and women experience conflict differently, and that accounting for women’s experiences of conflict and insecurity is vital to achieving sustainable peace and security.

Most recently, the Security Council passed resolution 2242, calling on member states to better integrate WPS into their strategies for countering violent extremism and counter-terrorism. That resolution also urged member states to “strengthen access to justice for women in conflict and post-conflict situations, including through the prompt investigation, prosecution and punishment of perpetrators of sexual and gender-based violence.”

Gendered war crimes have been the hallmark of Da’esh who have kidnapped women, published entire doctrines on the use of sex slaves, and thrown LGBTQI people off rooftops for their sexuality. Rape has been perpetrated as war crimes and has been so widespread that it constitutes a crime against humanity. Furthermore, sexual violence has been used as constituent of genocide against the Yazidis. Of the tens of thousands of foreign fighters who fight with Da’esh in Iraq and Syria, many come from countries like Australia that criminalise sexual violence as war crimes, crimes against humanity and genocide.

One such fighter is Khaled Sharrouf who is known to have purchased Yazidi women at a slave market, held them captive, and forced them into sexual slavery. However, rather than meeting Australia’s international obligation to investigate and prosecute him for these crimes, the Minister for Immigration revoked his citizenship, abdicating our obligation for non-recurrence and supporting impunity for conflict related sexual violence.

Recent updates to data laws in Australia give intelligence and law enforcement agencies an unprecedented volume of information to prevent terrorist activity. However, the system continues to fail to adequately analyse the information at hand. Dr Anne Aly MP, noted that ahead of the Lindt café siege, Man Haron Monis exhibited the three behavioural traits that indicate a serious terrorist threat. Fixation: a pathological preoccupation with a person or cause; identification: a warrior mentality that includes narcissistic fantasies; and leakage: communication either to a third party or to the public of intent to commit violence.

There is a strong correlation between perpetration of domestic violence and modern terrorist activity. Sociological research has shown domestic terrorist groups are now more likely to show behaviours to reassert male dominance. This is a common pattern of behaviour in perpetrators of domestic violence. We know that Man Haron Monis has been charged with the murder of his former wife. Many other cases exist including one of the London Bridge terrorists abuse of his wife. But the Australian government continues to underfund the domestic violence services that make victims feel safe enough to report their abusers. Similarly, since 2015, the government has spent a mere three percent of what it did on counterterrorism, on the community sector programs that counter or prevent violent extremism.

In 2015, the Australian Senate heard that thirty-three asylum seekers alleged they had been raped or sexually assaulted at the immigration detention centre on Nauru. Given the centre on Nauru was only host to a hundred or so women and children, this figure is staggeringly high. Policy and government responses to the safety, health and wellbeing of refugees and asylum seekers in detention remain inadequate. The most shocking case was the refusal to provide sexual and reproductive health care to a Somali woman who fell pregnant when she was raped in detention.

The head of ASIO recently explained that he saw no relationship between refugees and asylum seekers coming to Australia and incidents of terrorism. But the government has decided to bring the Department of Immigration and Border Protection, that has overseen these gross breaches of women’s security, into a mega Department of Home Affairs designed to ‘improve’ Australia’s security.

Meanwhile, the Australian Federal Police (AFP) undertake a range of operations beyond merely securing our borders and counterterrorism.  The AFP are a key national tool in supporting the rules based global order. They participate in UN peacekeeping operations and undertake significant police support programs in the Pacific. Some of these programs are aimed at improving women’s participation in the police force as well as better responding to and reducing incidence of violence against women. Will these programs be reduced under a new strategic direction based on the concept of a ‘Home Office’?

In short, the merging of departments and agencies into the mega Department of Home Affairs, as well as the ministerial leadership chosen to run the new department, show scant regard for gender justice, women’s rights and the rule of law and admonishes women’s agency and expertise.

More munitions on Mosul… must we?

Last week, the Department of Defence released its latest data on Australian Defence Force Operations in Iraq. The data showed that a record number of munitions had been dropped on targets in Mosul. In total, 119 munitions were dropped in May, up from 60 in April. This figure is in line with recent statements by Defence Minister Marise Payne, in which she described a preference for members of Da’esh to be killed on the battlefields of Iraq and Syria. The government is so far not pursuing a policy of investigating and charging foreign fighters from Australia with war crimes, crimes against humanity and genocide, the Minister said “we would rather that they were eliminated as part of the process of the self-defence of Iraq and the operations being undertaken in Syria.”

Australia has obligations under the Rome Statute, and our own legislation on the International Criminal Court to investigate and prosecute the worst crimes under international law including crimes against humanity and genocide. The United Nations and Human Rights Watch have published definitive reports showing Da’esh perpetrating these crimes. At the end of 2016, Australia co-sponsored a General Assembly resolution on the investigation and prosecution of the worst crimes under international law in the war in Syria. But the government has so far been unwilling to follow through with those obligations.

Aerial bombardment of densely populated urban areas is unlikely to prove a successful strategy in counterinsurgency. While Da’esh’s strength in both Mosul and Raqqa gives rise to the need to consider operations as more than a counterinsurgency, aerial bombardment does not provide the precision required to defeat an enemy so immersed in highly populated terrain. Indeed, unlike other coalition partners in Iraq, Australia has proven unable to prove it has undertaken sufficient battle damage assessments to even calculate civilian casualties.

Similarly, several significant Australian Da’esh operatives have been considered killed in airstrikes but later discovered alive. Such operatives include Neil Prakash and Khaled Sharouf, amoung others. There is significant evidence that these individuals have perpetrated international crimes for which Australia is obliged to investigate and prosecute. Neil Prakash is likely guilty of genocide, and even more likely to be guilty of inciting genocide. At present, Prakash’s arrest warrant is only for terrorism related offences. There is significant evidence Khaled Sharrouf perpetrated sexual violence as war crimes, genocide and crimes against humanity, as well as having breached Australia’s human trafficking laws. It seems unlikely Sharrouf will face any charges since the Immigration Minister revoked his citizenship earlier this year.

While thousands are dying in an aerial battle designed with a strategic imperative in mind, thousands of civilians are dying in the wreckage. Families are starving and economically devastated. Even families who are opposed to Da’esh are having trouble keeping young men from taking up arms when Da’esh are the only ones offering an income and food rations. Mainstream media commentary, including in publications like The Australian, has argued that it is just and right for these foreign fighters to be killed on the battlefield. But what that argument lacks is a grasp of the driving ideology, and the desperate calls for gender justice of the survivors of Da’esh’s crimes.

Survivors of Da’esh’s genocide of the Yazidi are crying out for justice. Military operations make no account for sex slaves still held captive, nor provision for their testimony. Evidence is being bombed and land operations make no consideration for its preservation or documentation. Police in Mosul may well have returned to directing traffic, but they are not documenting and investigating the sexual violence that has driven this conflict, nor any of the other crimes that have been perpetrated that are recognised under international law. In a speech at the UN earlier this year, international human rights lawyer Amal Clooney noted that ‘there is still not one ISIS militant who has faced trial for international crimes anywhere in the world’.

The final glaring flaw in the logic of annihilation is the willingness of Da’esh fighters to die as martyrs on the battlefield. Many of them not only prepare for this eventuality, but hope for its occurrence.  The belief in martyrdom has long held the imagination of those in the west so it seems odd now that coalition strategy would bear it to fruition. Rather than bringing these fighters down to the level of common criminal, stigmatised as war criminals and génocidaires, we are giving them exactly what they want, a martyrs death in a battle for a caliphate.

The crimes of Khaled Sharrouf: citizenship revoked, justice denied?

TRIGGER WARNING – slavery, sexual violence and threats of physical violence

“In Syria, in Raqqa, we were kept in a hall. The Australian then came there and bought us.” ‘Layla’ is a Yazidi woman who, like thousands others, was kidnapped by Da’esh and sold into sexual slavery. She was bought by Khaled Sharrouf, a Lebanese migrant who used to live in Sydney. Having already been convicted and imprisoned for terrorism offences, Sharrouf flew to Syria on his brother’s passport where he began fighting with Da’esh. His Australian wife, now deceased, and children lived there with him.  ‘Layla’ says “the children were holding knives and told us that they were going to kill us. They were calling us infidels. “All Yazidis are infidels,” they said. “All the world must convert to Islam.””

'Layla'

‘Layla’

She was one of seven Yazidi women held together in servitude in a house on the outskirts of Raqqa. “We were required to do anything those children asked. We were their servant and slaves. We weren’t allowed to disturb them or rebuke them. That went for the entire family. We had to do anything they wanted.”

Her friend, ‘Nazdar’ says “We couldn’t even cry, they hurt us so much. If we refused anything they demanded of us, they would beat us hard.” A third woman, ‘Ghazala’ said the children had knives and cellphones, “saying that they will take videos while killing us because we follow a different religion. And said that they will make a video while cutting off our heads.”

The sexual violence experienced by Yazidi women is often considered a deeply shameful thing, and many of the survivors have trouble talking about it. But ‘Ghazala’ says “they told two of us to marry him. And he was taking them to a lonely, private room and spending two or three hours with them. Sometimes he was taking one of them late at night and bringing her back in the morning.”

Khaled Sharrouf

Khaled Sharrouf

Layla hoped that the Australian Government would help her find justice for what Khaled Sharrouf and his Australian comrades have done to her and her friends. She said ”if those terrorists are ever caught, they must make sure that they will never escape. I want them to punish those terrorists…”

When sexual violence is perpetrated as part of an armed conflict, it is a war crime. When that violence is widespread, systemic and directed at the civilian population, it is a crime against humanity. If it used to destroy, in whole or in part, a particular ethnic, racial or religious group, it is genocide. These are crimes under international law; under the Geneva Conventions, the Genocide Convention and the Rome Statute of the International Criminal Court. They are crimes under Australian law, having been ratified through the War Crimes Act, the Geneva Conventions Act and the Rome Statute Act.

Sex trafficking is illegal under Australian law too. The laws have universal jurisdiction, meaning they can be applied even when neither the victim or perpetrator is Australian and the crimes need not have occurred in Australia. Slavery and sexual servitude can also be war crimes and crimes against humanity.

These are heinous crimes, given a special place in the law. They are the reason why the International Criminal Court was established, to end impunity for such violence. Under the principal of complementarity of that court, countries that are willing and able to investigate and prosecute these crimes, are obliged to do so. It is for this reason that the court usually deals with crimes committed in developing countries, places that the justice system and/or political situation do not have the capability to pursue justice.

In Australia, the Australian Federal Police are the responsible investigative authority. Presumably, in cases with such significant overlap of security concerns, investigations would be undertaken with the assistance of other security and intelligence agencies. But last month, rather that issue an arrest warrant for Khaled Sharrouf, the Australian Government simply revoked his citizenship. Now, he is of no greater concern to the government than any of the thousands of other foreign fighters committing war crimes, crimes against humanity and genocide in Syria and Iraq. The prospects of Layla and her friends receiving the justice they seek are now virtually nil.

How then, can this policy of revoking citizenship truly be about justice? Is it just another way for men to decide what women should feel about the ill that has been done to them? For men to decide what security is, what safety is, and what crimes matter the most? How is this fair for those women? How then, is it fair for any women?

If you would like to call on the Australian Government to investigate and prosecute Australians who have perpetrated sexual violence as war crimes, crimes against humanity and genocide in Iraq and Syria, please go to prosecutedontperpetrate.com to find out more and sign the petition now.

The names of the women in this story have been changed for their safety and security. All their quotes were drawn from voiceover translations during a story by Matt Brown on ABC’s 7.30 program. You can watch the whole program below.

It’s time to prosecute – sexual violence by Da’esh in Iraq and Syria

Last month, the United Nations Security Council met for its annual open debate on Women, Peace and Security (WPS). In their statement to the Security Council, the Permanent Representative from Iraq called for assistance strengthening their capacity to address sexual violence perpetrated against women and children by Da’esh.

This year marks the sixteenth anniversary of the first WPS resolution, United Nations Security Council Resolution (UNSCR) 1325. UNSCR 1325 emphasised “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”.

There are now a total of eight WPS resolutions, many of which focus on prevention of, protection from and ending impunity for sexual violence in armed conflict. The most recent, UNSCR 2242 reiterated the need for the “implementation of relevant obligations under international humanitarian law and international human rights law.” It also affirmed “the primary role of Member States to implement fully the relevant provisions of Security Council resolutions on women, peace and security”.

International campaigns such as Stop Rape Now have sought to bring attention to sexual violence in armed conflict. But these gendered crimes are often being perpetrated outside the jurisdiction of institutions willing and able to bring the perpetrators to justice. In 2014, Angelina Jolie and William Hague launched the Preventing Sexual Violence Initiative with projects to aid in the documentation and investigation of sexual violence in conflict. Despite advances at the International Criminal Court, these crimes are often still overlooked.

In Iraq and Syria, there’s an unprecedented opportunity to end impunity for sexual violence in armed conflict. Da’esh have used sexual violence as a weapon of war, constituent of genocide and in crimes against humanity. Since 2011, over 30 000 people have travelled from 89 countries to fight with Da’esh and other extremist organisations. Many of those people come from countries where war crimes, crimes against humanity, and genocide are outlawed under domestic legislation.

If countries prosecuted their own nationals for these crimes we would finally go some way to achieving justice for the victims, ending impunity for sexual violence in conflict, and implementing the WPS agenda. In countries such as France, Germany, and the United Kingdom, war crimes, genocide and crimes against humanity are outlawed in domestic legislation.  Finland and Sweden have already bought cases against their nationals.

Sexual violence can be prosecuted as a violation of the laws or customs of war, Common Article 3 to the Geneva Conventions, the Fourth Geneva Convention, or both Additional Protocols I and II to the Geneva Conventions.  In Australia, war crimes and violations of the laws and customs of war are criminalised in the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995.

The Rome Statute of the International Criminal Court recognises rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation and other forms of sexual violence as crimes against humanity if the action is part of a widespread or systemic practice.

Da’esh has indeed developed a widespread and systemic practice of sexual slavery and rape. There is dedicated infrastructure for the enslavement, trafficking and rape of women and girls. Investigations have uncovered a network of warehouses where the victims are held, viewing rooms where they are inspected and marketed, and a dedicated fleet of buses used to transport them. Da’esh has developed a detailed bureaucracy of sex slavery, including sales contracts notarized by their own court system. They have published an entire doctrine codifying their practices. In order to comply with this doctrine, women are forced to take oral contraceptives to ensure they are not pregnant while being raped.

yazidi-protest

The principle of complementarity of the International Criminal Court obliges States Parties to investigate and prosecute the crimes outlined in the Rome Statute. The Rome Statute is integrated into Australian law with the International Criminal Court Act 2002  and the International Criminal Court (Consequential Ammendments) Act 2002.

For sexual violence to be considered “a constitutive act with respect to genocide,” it needs to have been committed with the intent to destroy, in whole or in part a national, ethnical, racial or religious group. The United Nations Human Rights Council has published a damning report, outlining Da’esh’s ongoing genocide of the Yazidis. Genocide has been a crime under Australian domestic law since 2002, when the federal government finally passed the Genocide Convention Act 1949.

Friday 25 November marks the beginning of the annual 16 Days of Activism Against Gender Violence campaign. It will be marked by the launch of the ‘prosecute; don’t perpetrate‘ campaign, calling on the Australian government to investigate and prosecute Australians who have perpetrated these crimes. It is high time we used our own laws, to investigate and prosecute our own citizens for sexual violence perpetrated by Da’esh in Iraq and Syria. Today is the most pertinent day to turn our minds to ending impunity for sexual violence in armed conflict. These laws exist; we know the crimes have been perpetrated. Now we need to develop the political will to allocate the resources, investigate individual cases and prosecute them.

Mosul offensive mustn’t stop justice for war crimes

This post was kindly republished on the Huffington Post blog.

As the battle for Mosul rages, we need to remember that war crimes have driven this conflict.  Gendered war crimes have been the hallmark of Da’esh who have kidnapped women, published entire doctrines on the use of sex slaves, and thrown LGBTQI people off rooftops for their sexuality. There needs to be justice for those crimes. Their evidence needs to not be destroyed by the current offensive.

Rape has been used as a weapon of war; a war crime. It has been so widespread that it constitutes a crime against humanity. Furthermore, sexual violence has been used as constituent of genocide against the Yazidis. These crimes have been reported by the United Nations and many local and international activists.

The international nature of this conflict means there is the greatest scope for international justice for victims of these crimes. It has been reported that France is going to take Russia to the International Court of Justice for war crimes in the siege of Aleppo and the French prosecutor has been investigating Assad for war crimes since last September.

There have been repeated calls for the International Criminal Court to investigate and prosecute. However, neither Iraq nor Syria is signatory to the Rome Statute. The ICC may still be able to prosecute if it was referred by the Security Council, but both Russia and China have so far vetoed any efforts to pass such a resolution. As such, the ICC does not have the jurisdiction.

Foreign Fighters in Iraq and Syria (Credit: Radio Free Europe)

Foreign Fighters in Iraq and Syria (Credit: Radio Free Europe)

At the peak of Da’esh’s power some 30 000 foreign fighters filled their ranks. Many of these fighters came from places where war crimes, crimes against humanity and genocide are outlawed in domestic legislation. The principle of complementarity of the International Criminal Court means that countries who have signed the Rome Statue and have the willingness and ability, must investigate and prosecute these crimes. Finland and Sweden have already bought cases against their nationals. It is time countries like Australia, the United Kingdom and Belgium do so too.

However, investigation and prosecution of international crimes is incredibly difficult. Even when a competent authority has jurisdiction, gathering of evidence is problematic in a war zone, thousands of miles from home.

In 2014, Angelina Jolie and William Hague launched the International Protocol on the Investigation and Documentation of Sexual Violence in Conflict. Since then, the Foreign Office has developed training for the implementation of best practice for documenting sexual violence as a crime in conflict.

Yazidi activist, Ameena Saeed Hasan has called on planners of the Mosul offensive to consider Da’esh’s 1400 captives in their operational planning. US Ambassador to the United Nations, Sarah Mendelson has said the announcement of the Mosul offensive ahead of time allowed Da’esh to hide its captives. As such, it is all the more important to ensure considerations of investigation and evidence are integrated into the planning and conduct of military operations currently underway in Iraq.

Australia, the US and other nations supporting the Iraqi military have national action plans on women, peace and security. These action plans are based on the suite of UN Security Council resolutions that oblige member states to protect women from the effects of armed conflict (particularly sexual violence) and ensure their participation in conflict prevention, mitigation and recovery.

These resolutions identify sexual violence not only as a crime against humanity or constituent of genocide, but also a threat to international peace and security. Security Council Resolution 2106

affirms that sexual violence, when used or commissioned as a method or tactic of war or as part of a widespread or systemic attack against civilian populations, can significantly exacerbate and prolong situations of armed conflict and may impede the restoration of international peace and security

This time last year, the Security Council passed resolution 2242, reiterating the need for “implementation of relevant obligations under international humanitarian law and international human rights law”. That resolution also

called for the greater integration by member states and the United Nations of their agendas on women, peace and security, counter-terrorism and countering violent extremism

As such, it is absolutely imperative that the documentation and investigation of international crimes be fully considered in the planning, conduct and transition activities undertaken by security forces in Mosul. It is necessary for us to meet our obligations under international law, within the Security Council resolutions and within our own policy documents.

Citizenship revoked

A few months ago, the Abbott government developed several proposals to strip Australian dual nationals of their citizenship should they join Daesh in the Middle East. They released a discussion paper which stated that “citizenship is a contract by which we all abide.” The paper talks about citizenship as a privilege that is “fundamentally linked to an ongoing commitment to Australia and participation in Australian society.”

First of all, citizenship is neither a privilege nor a contract. Citizenship is a right. Every human being has a right to statehood. Article 15 of the Universal Declaration of Human Rights provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Arbitrarily depriving someone of their nationality engages consideration of a legitimate objective, proportionality and due process. Each of these three considerations is questionable in this context.

It surprised me that this whole discussion began on the 800th anniversary of the signing of the Magna Carta, a document credited with the beginning of a western tradition of human rights and limitations on state power. Australia has the only copy of the Magna Carta in the southern hemisphere and it is permanently displayed in Parliament House. The most famous passage contained in this historic document can be found in Chapter 39 and states that, “no free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land.”

The right to citizenship is not one that can be revoked by Ministerial decree. This matter has been tested by courts in other jurisdictions. In 1958, in the Tropp v Dulles judgement, the United State Supreme Court stated “citizenship is not a licence that expires on misbehaviour… and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” In that case, the Chief Justice, joined by Justices Black, Douglas and Whittaker concluded that “citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers.”

In a recent article in The Conversation, Rayner Thwaites went beyond legal questions of the government’s proposals. He asked if revoking citizenship would be an effective “means of expressing moral opprobrium about terrorism?” I would argue that revoking citizenship is not a suitable means of addressing moral contempt of terrorism.

Captured women and children were treated as

Captured women and children were treated as “spoils of war”, the UN report said.
(Photo by AFP: Ahmad Al-Rubaye)

If an Australian citizen chooses to travel to Iraq or Syria and fight with Daesh and then chooses to return to Australia, they should be charged with the relevant criminal offences and prosecuted. Such offences could include treason, genocide and war crimes. In 2013, the Commonwealth Crimes Act was amended to update the definition of treason which could now cover acts undertaken by Australians fighting with Daesh in Syria or Iraq. The United Nations has suggested that Daesh is committing genocide against the Yazidi people. Genocide has been a crime in Australia since 2002, when the government finally passed the Genocide Convention Act of 1949.

There is also a vast body of evidence to suggest Daesh are committing a range of war crimes, or grave breaches of the Geneva Conventions. A recent report by the Human Rights Council recorded the following acts which are defined as war crimes in the Rome Statue: murder, cruel or degrading treatment and torture; directing attacks against civilians or humanitarian workers; taking hostages; summary executions; rape, sexual slavery, forced prostitution or forced pregnancy. The report documented particularly egregious violations against women and girls. As a result of this report, the Office of the High Commissioner for Human Rights has asked the Security Council to refer perpetrators to the International Criminal Court for further investigation and possible prosecutions.

In Australia, these acts are criminal offences under the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995. Under the principle of complementarity of the International Criminal Court, signatories to the Rome Statue have the obligation, if they are willing and able, to investigate and prosecute these crimes themselves. If such crimes have been committed by Australian citizens, we will certainly have the jurisdiction, and should show a willingness and ability to investigate and prosecute.

During the late 1980s, concern “that a significant number of persons who committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents” gave rise to the establishment, in 1987, of the Special Investigations Unit. The unit investigated Nazi war crimes, and was later used in investigations of crimes in the Balkans. But there has been a “lack of political will to cover the necessary financial costs” and the unit no longer exists. When Australian soldiers were accused of unlawfully killing civilians in Afghanistan, the body of law used in their prosecution was not the Geneva Conventions, but civil law relating to duty of care.

A just response to Australians choosing to join Daesh, one that falls within the human rights framework and supports the rule of law, would be to find sufficient evidence, charge the individuals in question, and prosecute them. Justice would be much better served if the Australian Government mandated, maintained and supported the relevant institutions and units required for this task. This is particularly pertinent given Australia’s public stance against impunity for sexual and gender based violence in conflict and would certainly go some way to meeting our obligations under the suite of United Nations Security Council Resolutions on Women, Peace and Security and Australia’s National Action Plan on Women, Peace and Security 2012-2018.